Galloway v. State
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Opinions
CATHELL, Judge.
On June 19, 2000, Anthony Galloway (“appellant”) was charged by the State in a single indictment, relating to the nonfatal shooting of Robert Knox, with nine counts of criminal conduct, including attempted murder, assault, reckless endangerment, use of a handgun in the commission of a felony or crime of violence, carrying a handgun (counts 1 through 7) and possession of a firearm after having been convicted previously of a crime (counts 8 and 9).1 On March 20, 2001, in a pretrial [383]*383hearing in the Circuit Court for Baltimore City, appellant’s counsel expressed concern over the prejudicial impact of appellant’s prior criminal record, an element of counts 8 and 9, on the remaining seven charges. As a result, without objection from the parties, the trial court created a special procedure 2 where, in the same criminal trial a jury would determine the guilt of appellant in respect to counts 1 thru 7, and the trial judge would determine the guilt of the appellant in respect to counts 8 and 9. Trial proceedings began later that same day. During the two-day trial the judge and the jury heard evidence on counts 1 through 7 simultaneously, with evidence of appellant’s prior convictions relating to counts 8 and 9 heard only by the judge.3 At the request of appellant, and over the objection of the State, the court deferred its verdict on counts 8 and 9 until after the jury returned its [384]*384verdict on counts 1 through 7.4 On March 21, 2001, the jury found appellant “not guilty” on counts one through seven. The following day, the court returned its verdict of “guilty” as to counts 8 and 9.
At sentencing, the court merged count 9 into count 8, and sentenced appellant to five years incarceration, of which one year was suspended and two years were converted to supervised probation. Appellant filed a motion for new trial, which was denied by the trial court in a memorandum dated July 27, 2001. Appellant then filed a notice of appeal to the Court of Special Appeals. This Court issued a writ of certiorari, bypassing the Court of Special Appeals, to answer the following questions:
“1. Whether under both the Double Jeopardy Clause of the Fifth Amendment and the Maryland common law, the jury’s acquittal barred the trial court’s contrary verdict on the issue of possession.[5]
[385]*3852. Whether the trial court erred by rendering an inconsistent verdict and improperly shifting the burden of proof.”
The procedure utilized by the circuit court, i.e., the bifurcation of the decision making function between a jury and a judge in respect to different counts of a single indictment in a single trial is not expressly authorized in Maryland, or anywhere else as far as our research has revealed. In our discussion we will briefly examine the previously accepted method for severing counts of indictments into separate cases. We shall ultimately hold that in criminal cases where the circumstances and fact issues alleged are identical, a guilty verdict, or its equivalent, by the court, that is inconsistent with a jury verdict of acquittal, is, generally, impermissible.
The facts of this case are uncontroverted, the parties having agreed to proceed on the statement of facts presented in appellant’s brief pursuant to Maryland Rule 8-501(g).6 The facts as presented in appellant’s brief are:
“In the early morning hours of September 1, 1997, nineteen-year-old Robert Knox was shot in the foot. He claimed that he was sitting on the steps of an abandoned house with five or six friends from the neighborhood, when thirty-five year old [appellant] came out of his mother’s house, several doors down, and shot him. At trial, Mr. [386]*386Knox was the only witness who identified [appellant] as the shooter. The prosecution theorized that [appellant] shot Mr. Knox in retaliation for an incident several hours earlier in which Mr. Knox ‘borrowed’ [appellant’s] bicycle without asking. The defense challenged the credibility of Mr. Knox, who had a criminal record for drug distribution and theft, and emphasized the State’s failure to investigate or call any of Mr. Knox’s friends who were present during the bicycle incident and the shooting. The. defense argued that Mr. Knox, who was angry with [appellant] for calling the police on him, was motivated to testify falsely. The jury acquitted [appellant] of all seven counts before it, including the charge for carrying a handgun. The next day, [the trial court judge] found [appellant] guilty of the two firearm possession counts before her.
“Officer Aaron Robinson testified that around midnight on the day of the incident, [appellant] flagged him down, reporting that someone had borrowed his bicycle and not returned it. The two caught up with Mr. Knox and several of his friends. Officer Robinson demanded that Mr. Knox return the bike to [appellant], and threatened to lock up Mr. Knox for theft. When Mr. Knox returned the bicycle, Officer Robinson considered the incident resolved with a ‘simple intervention’ and left the scene.
“Mr. Knox, however, who was ‘pretty mad’ at [appellant] for calling the police, confronted [appellant] declaring: ‘That’s messed up you called the police on me.’ As [appellant] started biking back towards his mother’s house at 1010 North Carrie Street, Mr. Knox and his friends walked in the same direction. According to Mr. Knox, one of his friends, ‘Monk,’ said something to [appellant]. Mr. Knox and [appellant] then had ‘little words,’ and exchanged ‘profanity toward each other.’
“An hour or two later, Mr. Knox and his friends, who had all been drinking ‘E&J’ brandy, sat in front of an abandoned home at 1000 North Carrie Street, a few houses down from [appellant’s mother’s] house. Mr. Knox acknowledged that he lived several blocks away, and claimed he ‘just happened [387]*387to park’ himself at that spot. According to Mr. Knox, he had been there for about twenty minutes when [appellant] came out of his mother’s house. One of Mr. Knox’s friends, ‘Tay,’ went over to speak with [appellant]. After [appellant] went back inside, ‘Tay’ returned to where Mr. Knox was sitting and told him ‘everything is going to be all right.’ Mr. Knox claimed that about a minute later, [appellant] came out of the house with a handgun, and shouted at him. As he tried to run away, [appellant] started shooting. Mr. Knox testified that his friends were there and ‘they saw everything.’ At the same time, he claimed that none of his friends saw who fired the gun because they ‘had [their] backs turned when [they] heard the shots rang off and ‘everybody ran.’ He also insisted he did not know his friends’ names except the nicknames of ‘Tay’ and ‘Monk.’
“After being shot in the foot, Mr. Knox ran seven blocks to his girlfriend’s house. When the ambulance and police came, they took Mr. Knox back to North Carrie Street before taking him to the hospital, and Mr. Knox pointed to the house at 1010 North Carrie Street, indicating where the shots were fired. Detective Brenda May responded to a call about an incident four blocks over from North Carrie Street. However, when she got to the location of the reported incident, the dispatcher instructed her to report to 1010 North Carrie Street instead.
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CATHELL, Judge.
On June 19, 2000, Anthony Galloway (“appellant”) was charged by the State in a single indictment, relating to the nonfatal shooting of Robert Knox, with nine counts of criminal conduct, including attempted murder, assault, reckless endangerment, use of a handgun in the commission of a felony or crime of violence, carrying a handgun (counts 1 through 7) and possession of a firearm after having been convicted previously of a crime (counts 8 and 9).1 On March 20, 2001, in a pretrial [383]*383hearing in the Circuit Court for Baltimore City, appellant’s counsel expressed concern over the prejudicial impact of appellant’s prior criminal record, an element of counts 8 and 9, on the remaining seven charges. As a result, without objection from the parties, the trial court created a special procedure 2 where, in the same criminal trial a jury would determine the guilt of appellant in respect to counts 1 thru 7, and the trial judge would determine the guilt of the appellant in respect to counts 8 and 9. Trial proceedings began later that same day. During the two-day trial the judge and the jury heard evidence on counts 1 through 7 simultaneously, with evidence of appellant’s prior convictions relating to counts 8 and 9 heard only by the judge.3 At the request of appellant, and over the objection of the State, the court deferred its verdict on counts 8 and 9 until after the jury returned its [384]*384verdict on counts 1 through 7.4 On March 21, 2001, the jury found appellant “not guilty” on counts one through seven. The following day, the court returned its verdict of “guilty” as to counts 8 and 9.
At sentencing, the court merged count 9 into count 8, and sentenced appellant to five years incarceration, of which one year was suspended and two years were converted to supervised probation. Appellant filed a motion for new trial, which was denied by the trial court in a memorandum dated July 27, 2001. Appellant then filed a notice of appeal to the Court of Special Appeals. This Court issued a writ of certiorari, bypassing the Court of Special Appeals, to answer the following questions:
“1. Whether under both the Double Jeopardy Clause of the Fifth Amendment and the Maryland common law, the jury’s acquittal barred the trial court’s contrary verdict on the issue of possession.[5]
[385]*3852. Whether the trial court erred by rendering an inconsistent verdict and improperly shifting the burden of proof.”
The procedure utilized by the circuit court, i.e., the bifurcation of the decision making function between a jury and a judge in respect to different counts of a single indictment in a single trial is not expressly authorized in Maryland, or anywhere else as far as our research has revealed. In our discussion we will briefly examine the previously accepted method for severing counts of indictments into separate cases. We shall ultimately hold that in criminal cases where the circumstances and fact issues alleged are identical, a guilty verdict, or its equivalent, by the court, that is inconsistent with a jury verdict of acquittal, is, generally, impermissible.
The facts of this case are uncontroverted, the parties having agreed to proceed on the statement of facts presented in appellant’s brief pursuant to Maryland Rule 8-501(g).6 The facts as presented in appellant’s brief are:
“In the early morning hours of September 1, 1997, nineteen-year-old Robert Knox was shot in the foot. He claimed that he was sitting on the steps of an abandoned house with five or six friends from the neighborhood, when thirty-five year old [appellant] came out of his mother’s house, several doors down, and shot him. At trial, Mr. [386]*386Knox was the only witness who identified [appellant] as the shooter. The prosecution theorized that [appellant] shot Mr. Knox in retaliation for an incident several hours earlier in which Mr. Knox ‘borrowed’ [appellant’s] bicycle without asking. The defense challenged the credibility of Mr. Knox, who had a criminal record for drug distribution and theft, and emphasized the State’s failure to investigate or call any of Mr. Knox’s friends who were present during the bicycle incident and the shooting. The. defense argued that Mr. Knox, who was angry with [appellant] for calling the police on him, was motivated to testify falsely. The jury acquitted [appellant] of all seven counts before it, including the charge for carrying a handgun. The next day, [the trial court judge] found [appellant] guilty of the two firearm possession counts before her.
“Officer Aaron Robinson testified that around midnight on the day of the incident, [appellant] flagged him down, reporting that someone had borrowed his bicycle and not returned it. The two caught up with Mr. Knox and several of his friends. Officer Robinson demanded that Mr. Knox return the bike to [appellant], and threatened to lock up Mr. Knox for theft. When Mr. Knox returned the bicycle, Officer Robinson considered the incident resolved with a ‘simple intervention’ and left the scene.
“Mr. Knox, however, who was ‘pretty mad’ at [appellant] for calling the police, confronted [appellant] declaring: ‘That’s messed up you called the police on me.’ As [appellant] started biking back towards his mother’s house at 1010 North Carrie Street, Mr. Knox and his friends walked in the same direction. According to Mr. Knox, one of his friends, ‘Monk,’ said something to [appellant]. Mr. Knox and [appellant] then had ‘little words,’ and exchanged ‘profanity toward each other.’
“An hour or two later, Mr. Knox and his friends, who had all been drinking ‘E&J’ brandy, sat in front of an abandoned home at 1000 North Carrie Street, a few houses down from [appellant’s mother’s] house. Mr. Knox acknowledged that he lived several blocks away, and claimed he ‘just happened [387]*387to park’ himself at that spot. According to Mr. Knox, he had been there for about twenty minutes when [appellant] came out of his mother’s house. One of Mr. Knox’s friends, ‘Tay,’ went over to speak with [appellant]. After [appellant] went back inside, ‘Tay’ returned to where Mr. Knox was sitting and told him ‘everything is going to be all right.’ Mr. Knox claimed that about a minute later, [appellant] came out of the house with a handgun, and shouted at him. As he tried to run away, [appellant] started shooting. Mr. Knox testified that his friends were there and ‘they saw everything.’ At the same time, he claimed that none of his friends saw who fired the gun because they ‘had [their] backs turned when [they] heard the shots rang off and ‘everybody ran.’ He also insisted he did not know his friends’ names except the nicknames of ‘Tay’ and ‘Monk.’
“After being shot in the foot, Mr. Knox ran seven blocks to his girlfriend’s house. When the ambulance and police came, they took Mr. Knox back to North Carrie Street before taking him to the hospital, and Mr. Knox pointed to the house at 1010 North Carrie Street, indicating where the shots were fired. Detective Brenda May responded to a call about an incident four blocks over from North Carrie Street. However, when she got to the location of the reported incident, the dispatcher instructed her to report to 1010 North Carrie Street instead. Detective May investigated the area and found a 0.25 caliber casing in front of 1014 North Carrie Street in the middle of the street about a foot from the curb. She ascertained [appellant’s] name as a possible suspect, obtained his photograph, and arranged a photo array. She then went to the hospital, where Mr. Knox pointed to [appellant’s] photograph and identified [appellant] as the person who shot him.
“Detective May, who had been a police officer for nineteen years with seven years on the violent crimes task force, did not investigate any other witnesses or possible suspects, although Mr. Knox told her he was with some friends at the time of the incident. Detective May acknowledged she did not even ask Mr. Knox for the names of his friends because [388]*388‘from her experience a lot of people are reluctant to give up names of the people that are with them because they don’t want the police harassing or bothering or going to their houses.’ There was no evidence that investigators performed any tests on the casing to determine when it had been fired or how long it had been on the street, and no gun was found. Detective May obtained a warrant for [appellant’s] arrest, but did not serve it because [appellant] was not at 1010 North Carrie Street when the police arrived.
“The jury acquitted [appellant] on counts one through seven on March 21, 2001. The following day, the Court returned a guilty verdict as to counts 8 and 9.” [Some alterations added.]
Appellant contends that the issues presented in this appeal arose from the “unique procedural context” in which appellant was tried, which consisted of a “unified proceeding with a hybrid decision, part jury trial and part court trial.”7 Relying on principles of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution and Maryland common law, appellant asserts that the finality of his acquittal by the jury on the charge of carrying a handgun (count 7) precluded any consideration by the trial judge of the “same offense” of possessing a firearm (counts 8 and 9). In the alternative, appellant, relying on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), argues that collateral estoppel bars the State from “re-litigating a fact that previously ha[d] been resolved in [his] favor.”8 Appellant also [389]*389contends that the trial court’s verdict on counts 8 and 9 violated Maryland’s common law prohibition against inconsistent court verdicts, and that the trial court violated his federal and state due process rights when it improperly shifted the burden of proof to appellant by requiring him to provide an alternative theory of the crime.
The State asserts that appellant is “not entitled to raise a double jeopardy or collateral estoppel bar” when it was “he who requested the simultaneous court and jury trial and he who asked the court to delay its verdict until the jury had rendered [its].”9 Moreover, the State asserts that double [390]*390jeopardy prohibitions, including the collateral estoppel version of double jeopardy, do not apply because the proceeding was a single trial, proffering as authority a quote from our case of Farrell v. State, 364 Md. 499, 504, 774 A.2d 387, 390 (2001), “The double jeopardy prohibition protects a criminal defendant from successive prosecution.” The State then argues in its brief in this case that “He [appellant] was not retried by either a judge or a jury at a successive trial. Rather, he was merely found guilty on two different counts by a judge in the same trial.” (Emphasis in the original). It is clear, therefore, that the State considered this to be a single trial, and argues, for that specific reason, that double jeopardy principles do not apply in the first instance.
With regard to appellant’s claims of trial court error, the State additionally disputes the applicability of the rules governing inconsistent verdicts in the present case, and further denies that the trial court erroneously shifted the burden of proof.
General Discussion
Double jeopardy
As indicated above, it is the State’s position that double jeopardy and collateral estoppel issues are not applicable because what occurred here happened in the same single case, and that the principles of double jeopardy (however manifested) apply only to matters relating to subsequent litigation. While we do not necessarily agree that double jeopardy violations can only occur in subsequent litigation, under the facts of this case we shall not directly rely on double jeopardy principles but on Maryland common law principles. We note that there are federal cases that at first glance appear to support the State’s position in respect to double jeopardy. In Ashe v. Swenson, 397 U.S. 436, 442-46, 90 S.Ct. 1189, 1193-95, 25 [391]*391L.Ed.2d 469, 475-77 (1970), the United States Supreme Court stated:
“The question is no longer whether collateral estoppel is a requirement of due process, but whether it is part of the Fifth Amendment’s guarantee against double jeopardy....
“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law.... As a rule of federal law, therefore, ‘it is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of “mutuality” or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases.... ’
“The ultimate question to be determined, then, in light of Benton v. Maryland, supra, is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is. For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.
“The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.” [Citations omitted.] [Footnote omitted.] [Emphasis added.]
[392]*392This Court consistent with Ashe, opined in Butler v. State 385 Md. 238, 253, 643 A.2d 389, 396 (1994), that:
“.... (‘Collateral estoppel is part of the Fifth Amendment’s double jeopardy guarantee...’). Collateral estoppel is also an established component of Maryland’s common law. See Ford v. State, 330 Md. 682, 719, 625 A.2d 984, 1002 (1993)....
“ ‘[Wjhen a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” [Some citations omitted.] [Emphasis added.]10
We went on to state in Butler, 335 Md. at 253-54, 643 A.2d at 396, that:
“Although collateral estoppel is usually invoked upon a prior acquittal, the critical consideration is whether an issue of ultimate fact has been previously determined in favor of the defendant. As we stated in Ford v. State, collateral estoppel ‘analysis focuses on what the fact finder did find or must have found.’ (‘Collateral estoppel is concerned ... not with the legal consequences of a judgment but only with the findings of ultimate fact, when they can be discovered, that necessarily lay behind that judgment.’) (‘Collateral estoppel ... is stubbornly fact-bound’).” [Citations omitted.]
We stated in Ford, supra,:
“Maryland common law also recognizes the collateral estoppel form of double jeopardy. This common law collat[393]*393eral estoppel ‘prevents the State from litigating a second time an issue of ultimate fact where there has already been a final determination of that issue in the accused’s favor.’ Cousins v. State, 277 Md. 383, 398, 354 A.2d 825, 834, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976) (citing Ashe). ... It may apply both to subsequent trials and within the same trial. Brooks v. State, 299 Md. 146, 155, 472 A.2d 981, 986 (1984)....” Ford, 330 Md. at 719, 625 A.2d at 1002.
Ford, Wright, which we discuss more fully infra, and Brooks, stand for the proposition that collateral estoppel, under certain circumstances, can apply in the same case. But, the cases involved limited sets of circumstances, i.e. trial judges granting judgments of acquittal on some counts based upon an insufficiency of particular evidence, yet subsequently letting other counts go to the jury where they also depended upon that same particular evidence being sufficient. The procedural circumstances in Ford, Wright, Brooks and Curtis Williams, were significantly different than the circumstances of the present case.
At least in the traditional sense, the concept of double jeopardy, whether it be actual double jeopardy that precludes re-prosecution of offenses or re-litigation of issues as in collateral estoppel, usually contemplates a subsequent, or at least a different, case in which verdicts are rendered or material issues determined. It will not in this case be necessary to consider expanding the limited single case applications of collateral estoppel principles recognized in the particular circumstances of Ford, Wright, Brooks, and Curtis Williams. While it may be argued that what occurred here is some type of mutant subsequent prosecution in that the jury was excused before the verdict of the court was rendered, and, thus, the guilty verdict of the trial court violated the issue preclusion effect of collateral estoppel because it was a subsequent case, and, therefore, the court’s verdict should be reversed on double jeopardy grounds, it will not be necessary in this case to either approve or disapprove of the procedure utilized below, although we shall, where necessary, discuss it further.
[394]*394We shall reverse for other reasons, that we shall hereafter discuss. In doing so, we will not directly reach the constitutional issue of double jeopardy or constitutional collateral estoppel.
First we discuss the method expressly provided for by the Maryland Rules in respect to the prejudicial effect of multiple counts.
Severance
Potential prejudice is a fundamental concern underlying a court’s consideration of joint or separate trials for a defendant charged with multiple criminal offenses. See State v. Kramer, 318 Md. 576, 583, 569 A.2d 674, 677-78 (1990) (“Potential prejudice is the overbearing concern of the law of this State with respect to the question of joint or separate trials of a defendant charged with criminal offenses.”); Frazier v. State, 318 Md. 597, 607, 569 A.2d 684, 689 (1990). The Maryland Rules are not silent on the matter of joinder and severance of counts in the same, or in different cases. Md. Rule 4-253(c) addresses “Prejudicial joinder 11,” and specifically states:
“Rule 4-253. Joint or separate trials.
“(b) Joint trial of offenses. If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges....
“(c) Prejudicial joinder. If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.” [Emphasis added.]
[395]*395The rule does not further define what is meant by “separate trials.” The rule does not specifically permit or prohibit the bifurcation of a single trial.
It is clear that, at least where separate trials of separate counts are being considered, the decision to join or sever charges ordinarily lies within the sound discretion of the trial court. See Frazier, 318 Md. at 607, 569 A.2d at 689; Grandison v. State, 305 Md. 685, 705, 506 A.2d 580, 589 (1986); but see McKnight v. State, 280 Md. 604, 612, 375 A.2d 551, 556 (1977) (mandating severance where a defendant charged with similar but unrelated offenses establishes that “the evidence as to each individual offense would not be mutually admissible at separate trials”). In its consideration of joinder (and thus of severance), a trial court weighs the conflicting considerations of the public’s interest in preserving judicial economy and efficiency against unduly prejudicing the defendant. See Frazier, 318 Md. at 608, 569 A.2d at 689 (observing that “the likely prejudice caused by the joinder [of similar offenses, tried before a jury], must be balanced against the considerations of economy and efficiency in judicial administration”) (citing McKnight, 280 Md. at 609-10, 375 A.2d at 555); accord Conyers v. State, 345 Md. 525, 548, 693 A.2d 781, 792 (1997) (noting that “joinder of offenses, traditionally, has been justified on the basis that a single trial effects an economy, by saving time and money, to the prosecution, the defendant, and the criminal justice system”) (internal quotations omitted) (citation omitted).
Ultimately, a trial judge has a duty to ensure that the defendant receives a fair trial and to guard against injustice. See McKnight, 280 Md. at 608, 375 A.2d at 554 (discussing the common law test for prejudicial joinder and explaining that, “the courts will guard against injustice and abuse whenever apparent”) (internal quotations omitted) (citation omitted); accord Wanzer v. State, 202 Md. 601, 608, 97 A.2d 914, 917 (1953) (discussing the courts’ discretion in matters of trial joinder, and noting that “[t]here is no rigid rule, and the only limitation is that courts will guard against injustice”). Evi[396]*396dence of other crimes is inherently prejudicial because of its tendency to show that the defendant is predisposed to continue criminal behavior. Such evidence would generally be inadmissible unless circumstances of special relevance, other than proving a mere propensity to commit crime, are present. See, e.g., Ross v. State, 276 Md. 664, 669, 350 A.2d 680, 684 (1976) (“The [Sjtate may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ ” (citation omitted)). In the present case, evidence that the appellant was a felon, although especially relevant and admissible as to counts 8 and 9, undoubtably would have been prejudicial in respect to the remaining counts of the indictment.
While this Court has recognized the curative effect of a properly cautioning jury instruction under circumstances similar to the case sub judice,
We note that the present case is an instance of a hybrid jury/bench trial on the merits. In an appropriate case13 we might necessarily be faced with an initial question of whether a trial judge has the discretion to grant the single trial procedure used in the instant case. We shall not resolve that issue in this case, as the case can be fully resolved on other important issues. Our declining to address this specific bifurcation issue, should not be construed as any approval or [397]*397disapproval of the procedure.14
There are situations where we have disapproved of hybrid processes in the criminal courts. In respect to the exercise of the right to counsel we have, generally, disapproved hybrid representation. In Parren v. State, 309 Md. 260, 263, 523 A.2d 597, 598 (1987), we noted, in a Sixth Amendment context, that “[t]he right of self-representation is independent of the right to assistance of counsel. The rights ‘are mutually exclusive and the defendant cannot assert both simultaneously.’ ” (citations omitted). We went on to say:
“There is no right vested in a defendant who has effectively waived the assistance of counsel to have his responsibilities for the conduct of the trial shared by an attorney.... As we have noted, the right to counsel and the right to defend pro se cannot be asserted simultaneously. The two rights are disjunctive. There can be but one captain of the ship, and it is he alone who must assume responsibility for its passage, whether it safely reaches the destination charted or founders on a reef.” Parren, 309 Md. at 264, 523 A.2d at 599.
See also Leonard v. State, 302 Md. 111, 119, 486 A.2d 163, 166 (1985) (“the defendant cannot assert both simultaneously”).
In respect to rights of counsel issues, federal courts have also spoken to the constitutionality of hybrid representation.15 They have held that a criminal defendant does not have an absolute right to both self-representation and the assistance of counsel. United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981); United States v. Klee, 494 F.2d 394, 396-97 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 [398]*398L.Ed.2d 61 (1974); Duke v. United States, 255 F.2d 721, 725-26 (9th Cir.), cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958); United States v. Daniels, 572 F.2d 535, 540 (5th Cir.1978); United States v. Sacco, 571 F.2d 791, 793 (4th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Cyphers, 556 F.2d 630, 634 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977); United States v. Hill, 526 F.2d 1019, 1025 (10th Cir.1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976).
Other state courts have similarly interpreted the constitutionality of hybrid representation. See People v. Bloom, 48 Cal.3d 1194, 1218-19, 259 Cal.Rptr. 669, 774 P.2d 698, 712 (1989); People v. Doane, 200 Cal.App.3d 852, 863, 246 Cal. Rptr. 366, 371-72 (1988); Gamble v. State, 235 Ga.App. 777, 782, 510 S.E.2d 69,74-75 (1998); People v. Dennany, 445 Mich. 412, 441, 519 N.W.2d 128, 140 (1994); State v. Small, 988 S.W.2d 671, 673-74 (1999); State v. Hegge, 53 Wash.App. 345, 349, 766 P.2d 1127, 1129 (1989).
Another situation where we have disapproved the hybridization of trial procedures (waiver of jury trial rights) is closer to the questioned procedure in the case at bar. In respect to the waiver of the right to trial by jury, Maryland Rule 4-246 contemplates that the entire trial be by jury, or by the court. Rule 4-246 provides:
“Rule 4-246. Waiver of jury trial — Circuit court.
“(a) Generally. In the circuit court a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule....
“(b) Procedure for acceptance of waiver. A defendant may waive the right to trial by jury at anytime before the commencement of trial. The court may not accept the waiver until it determines ... that the waiver is made knowingly and voluntarily.”
As is readily clear, Rule 4-246 prescribes the process for waiving a jury “trial;” it does not expressly permit a defendant to pick and choose a mode of proceeding in respect to particu[399]*399lar parts in a single trial on the merits, with both a jury and a court as fact-finders as to different counts of the same indictment.
We have generally considered the waiver of the right to be tried by a jury to be a waiver in respect to the entire merits trial, not portions of the trial. We noted in Martinez v. State, 309 Md. 124, 131, 522 A.2d 950, 953 (1987), “A defendant may waive his right to a jury trial and elect instead to be tried by the court.” (citations omitted). We there addressed it as an either/or selection. In the one case having some similarity to the unusual situation of the present case, we held that it was a selection of one or the other. In State v. Marsh, 337 Md. 528, 654 A.2d 1318 (1995), we discussed the bifurcation of merits and criminal responsibility. Marsh had waived his right to a jury trial during the merits stage of his trial, but then attempted to have the matter of criminal responsibility decided by a jury. We held that he could not. In Marsh, we said:
“Under this intricate scheme, when Marsh waived his right to a jury trial as to guilt or innocence, he was precluded thereby from seeking a jury determination as to criminal responsibility---- Thus under this Rule,[16] the election of a bench trial on the merits inevitably encompasses a waiver of jury rights as to criminal responsibility.
“In this respect, the question of criminal responsibility is like every other issue to be decided in the cases. See People v. Berutko, 71 Cal.2d 84, 453 P.2d 721, 727, 77 Cal.Rptr. 217, 223 (1969) (jury waiver goes to all of the issues to be decided in the case).” Marsh, 337 Md. at 539, 654 A.2d at 1323. [Footnote added.]
See also People v. Russell, 195 Cal.App.2d 529, 532, 16 Cal. Rptr. 9, 11 (1961) (“It is settled that where a defendant waives a jury trial he is deemed to have consented to a trial of all the issues of the case before the court sitting without a jury.”).
[400]*400 Consistency of the verdicts
In the ease at bar, there is no dispute that both the jury and the judge based their decisions as to appellant having the handgun, or not having it, on the same identical evidence. The evidence upon which both fact-finders relied was presented in a single evidentiary proceeding. Likewise, there is no dispute as to whether the verdicts were inconsistent. They are clearly inconsistent. At a given point in time, the jury held that appellant did not possess the handgun. The trial court necessarily held that, at the same given point in time, appellant, a felon, was in possession of the same handgun. The State argues that appellant waived his right to object to the inconsistency of the verdicts, regardless of the appropriateness of the procedure. We hold that, in the particular circumstances of this case, the inconsistent verdict of the court nullified the jury’s verdict and was, thus, additionally inappropriate under Maryland common law principles.
As we have said, we have found no direct precedent for permitting inconsistent verdicts in the criminal law of this State (or of any state or the federal courts), where a verdict of a trial judge is inconsistent with the verdict of a jury in the same case. While the procedure utilized at trial in the present case was significantly different, on at least two occasions, in Wright and Curtis Williams, discussed supra and infra, Maryland’s appellate courts have disapproved inconsistent verdicts in criminal cases where the inconsistency involved court action. Additionally, our appellate courts have addressed such issues between a jury and the court in a civil context relating to consistency requirements. We see no reason why the consistency requirements in criminal cases should be less stringent than the standards we have applied in civil cases. We shall first discuss our civil precedents.
A reading of those prior civil cases indicates that they support the proposition that a court verdict, based upon a trial judge’s different interpretation of the same facts, should not be allowed to nullify a jury’s interpretation of those facts and its resulting verdict, because, the nullification of the jury [401]*401verdict is the denial of a person’s constitutional and common law right to be tried by a jury of his or her peers. Moreover, in that situation, where the jury and a judge render separate verdicts that are inconsistent with each other, the reasoning that supports the acceptance of inconsistent jury verdicts is not applicable.
The verdict being nullified in the present case is not the judge’s verdict, it is the jury’s verdict, especially in respect to count 7. As to that count, appellant did not waive his right to a jury trial. Whether appellant waived a jury trial on counts 8 and 9 (the counts upon which the judge rendered a verdict) in the context of the consistency issue, is simply not relevant to the issue of whether a jury’s interpretation of the facts and its not guilty verdict in a criminal case can be overturned or nullified by a judge’s different interpretation of the same facts that were presented only once in a single case to both triers of fact. More important, the reasons why inconsistent jury verdicts are tolerated simply do not apply when a judge is involved in rendering one of the inconsistent verdicts.
It makes no difference in criminal cases what the procedure is that results in the mingling of court and jury verdicts; inconsistent verdicts based on identical facts, are not permitted unless the inconsistency is solely a jury inconsistency. Additionally, when the verdicts of a court nullify a jury’s verdict, a defendant’s right to be tried by jury, has been improperly affected, or even nullified. At no time in the present case did appellant waive or give up his right to a jury’s verdict on counts 1 through 7.
In Edwards v. Gramling Engineering Corporation, 322 Md. 535, 543, 588 A.2d 793, 797 (1991), in the context of a civil case with mixed questions of law and equity,17 we stated: [402]*402judge is ‘ “without power” to reach a conclusion inconsistent with that of the jury.’ Gutzwiller v. Fenik, 860 F.2d 1317, 1333 (6th Cir.1988). Second, as the Supreme Court has recognized,
[401]*401“Federal courts have supplied guidance that assists us in our review of the instant case. First, federal courts have held that, where equitable claims are to be resolved by the court and legal claims are to be resolved by the jury, the
[402]*402‘Where there is a view of the case that makes a jury’s answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury’s finding inconsistent results in collision with the Seventh Amendment.’ Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798, 807 (1962).” [Some citations omitted.]
We went on in Edwards to point out that the jury’s verdict could have been based on different factual circumstances than the court’s verdict. “There are at least two possible scenarios under which a jury could find there was no conversion.... Under the second scenario, the jury’s verdict for Edwards on conversion is consistent with the verdict for the Corporation on breach of fiduciary duty.” Id. at 545, 588 A.2d at 798 (citations omitted). We concluded in Edwards, “In summary, the verdict of the jury in this case was not inconsistent with the equitable remedy fashioned by the trial judge.” Id. at 554, 588 A.2d at 802-03.
In the present case, there is only one issue, one “scenario.” Appellant, at the point in time at issue, was either carrying the weapon or he was not. The jury found that he was not carrying it; subsequently, based on the identical evidence presented only once in the same trial, the judge found that, at the identical point in time, he was. Unlike in Edwards, the judge’s verdict in the case sub judice effectively nullifies the jury’s verdict. It is, without question, inconsistent.18
[403]*403In Higgins v. Barnes, 310 Md. 532, 530 A.2d 724 (1987), one of the early civil cases where issues were presented concerning the simultaneous court and jury trials of law and equitable issues, we noted the deference due to the verdicts of the jury in respect to the facts of the controversy. There, we said:
“We hold that a trial court may not deny a defendant his right to a jury trial on the legal issues presented by his counterclaim simply because that counterclaim is raised in an equitable action. We are constitutionally required to ‘inviolably preserve’ the right of trial by jury in actions at law, and so ‘where both legal and equitable issues are presented in a single case, “only under most imperative circumstances ... can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” ’ Dairy Queen v. Wood, supra, 369 U.S. at 472-73, 82 S.Ct. at 897 (quoting Beacon Theatres, supra, 359 U.S. at 510-11, 79 S.Ct. at 957).”
Id. at 551, 530 A.2d at 733. Thus, in Higgins, albeit a civil case, we held that even prior court verdicts must be subordinated to subsequent jury decisions. In the case sub judice, the contrary situation has occurred. A prior jury determination that appellant was not carrying or wearing the firearm and did not commit any of the offenses with which he was charged, is nullified, at least in substantial part, by a subsequent court decision based on the identical facts, that he was [404]*404carrying the firearm. The position urged on the Court by the State does not “inviolably preserve” the right of criminal defendants to have the facts of their cases, and their guilt, assessed by a jury.
Once the jury determined that appellant was not wearing and carrying the handgun at the relevant point in time and found him not guilty of that charge, the trial court should have dismissed counts 8 and 9, which, under the circumstances here present, also required, in order to find appellant guilty, that appellant was in possession of the same firearms at exactly the same time.
Our view is additionally supported by a consideration of the criminal case of Hoffert v. State, 319 Md. 377, 572 A.2d 536 (1990). Hoffert involved only a jury trial where inconsistent verdicts are sometimes accepted; i.e., there was no bifurcation of counts between the jury and the court. Moreover, the procedural circumstances were substantially different. Nonetheless, Hoffert offers comments that are somewhat relevant to the present case. The verdict form in Hoffert contained four charges: “1) Attempted murder in the first degree. 2) Attempted murder in the second degree. 3) Robbery with deadly weapon. 4) Use of a handgun in the commission of a crime of violence.” Id. at 379, 572 A.2d at 537. After the jury rendered not guilty verdicts on the first three counts, the trial court asked the prosecutor if he wanted the jury polled and they were polled. The trial court then proceeded to “hearken” the verdict but had only “hearkened” the jury’s verdict on the first count when the proceedings were interrupted by a juror who reminded the trial court that it had not taken the jury’s verdict on the fourth count. The trial court then took the jury’s verdict on that count and it was “guilty.” Subsequently, the jury was re-polled on all four verdicts and they were all “hearkened.” The argument was successfully made to the trial court that the inconsistent jury verdicts were permissible. We disagreed under the special circumstances of that case, albeit for procedural reasons, saying, in Hoffert, 319 Md. at 384-86, 572 A.2d at 539-41:
[405]*405“[W]e observed in Shell v. State, 307 Md. 46, 53, 512 A.2d 358 (1986), ‘commission of a felony or crime of violence is an essential ingredient of the § 36B(d) handgun offense. It is an element of the crime.’ ... Thus, ‘verdicts [of] not guilty of the crime of violence and guilty of use of a handgun in the commission of such a crime ... would be contrary to law....’ Therefore, ‘a trial court in a criminal case must, if requested by the accused, instruct a jury that an accused cannot be found guilty of use of a handgun in the commission of a crime of violence ... if found not guilty of a crime of violence.... Nevertheless, inconsistent verdicts by a jury ‘are normally tolerated.... ’ This is so because of the ‘unique role of the jury, [and has] no impact whatsoever upon the substantive law explicated by the Court.’...
“It follows from our decisions that the instructions given the jury were in full accord with the law, but that the jury was free to ignore them.
“... What both the judge and the prosecutor overlooked was the effect of the not guilty verdicts on the viability of the trial.
“When the jury was polled on the verdicts of not guilty on the first three charges, and the poll disclosed that the verdicts were unanimous, the verdicts were final. The verdicts were legally proper.... The verdicts stood complete without a verdict on the handgun charge. The guilt stage of the trial was over at that point. The jury had no further function to perform. It had exhausted its power and authority and could not be called upon to exercise additional duties in the case. In short, the case was no longer within the province of the jury.” [Citations omitted.] [Alterations in original.] [Footnote omitted.]
In the case at bar, the transcript contained in the extract indicates that on March 21, 2001, the jury rendered its verdicts of not guilty on all of the jury counts, including the not guilty verdict as to count 7, and the jury was then immediately [406]*406polled by the clerk who stated at the conclusion “Harken to the verdict as the Court has recorded it.... ” The clerk continued until he had “harkened” all of the jury’s verdicts. The jury was then excused. At this point, all of its verdicts were final and were consistent.
It was not until the next day, when the court reconvened, that it rendered its verdicts on counts 8 and 9. Under this Court’s holding in Hoffert, even the jury could not have rendered those inconsistent verdicts after it was excused. The trial court’s verdicts in the case at bar on counts 8 and 9 are clearly inconsistent with the jury’s verdicts on the other counts.
The rationale for accepting inconsistent jury verdicts, which we noted in Hoffert, and other cases as well, that “[Ijnconsis-tencies may be the product of lenity, mistake, or a compromise to reach unanimity, and that continual correction of such matters would undermine the historic role of the jury as the arbiter of questions put to it” does not, and cannot, logically apply in the present circumstance. Hoffert, 319 Md. at 384-85, 572 A.2d at 540 (quoting Shell v. State, 307 Md. 46, 54, 512 A.2d 358, 362 (1986)). As far as we know, there is no other rationale for tolerating inconsistent verdicts in criminal cases. To approve what happened below would undermine the historic role of the jury as the arbiter of questions put to it. As important, in the present case it would serve to deprive the defendant of the jury’s verdict, especially as to count 7, and would retroactively deprive the defendant of his right to a jury trial by nullifying the jury’s verdicts of not guilty.
We held in Shell, 307 Md. at 52-58, 512 A.2d at 361-64 (1986), that:
“The State contends that Ford v. State, 274 Md. 546, 337 A.2d 81 (1975), and other cases, support the view that an accused may be convicted in a nonjury trial of the handgun offense under Art. 27, § 36B(d), even if the judge finds that the defendant did not commit the felony or crime of violence. We disagree.
[407]*407“The defendant in Ford was tried before a jury.... If the jury determines that the accused did not commit a felony or crime of violence but is guilty of use of a handgun in the commission of such felony or crime of violence, the jury has obviously rendered inconsistent verdicts. The Ford opinion, while recognizing that the verdicts were inconsistent, upheld the conviction because of the many cases in this Court which had ‘repudiated the assertion that jury verdicts must be consistent----’ (Ford, supra, 274 Md. at 552, 337 A.2d 81, emphasis added).
“Later, in Mack v. State, 300 Md. 583, 479 A.2d 1344 (1984), we reviewed the Ford case as follows (300 Md. at 593-594, 479 A.2d 1344):
‘Thus, this Court established ... [in Ford ] that in order to convict an accused of use of a handgun in the commission of a crime of violence it is necessary that the trier of fact find beyond a reasonable doubt that the accused committed a crime of violence. In essence, this Court recognized that when an accused is charged in a multi-count indictment with the commission of a crime of violence and use of a handgun in the commission of such a crime, a verdict of guilty of the crime of violence is a prerequisite to a verdict of guilty of use of a handgun in the commission of such a crime.
‘Additionally, in Ford, this Court pointed out that if an accused is found guilty of both the crime of violence and use of a handgun in the commission of such a crime, the verdicts are consistent and they can both stand. If, however, there is a verdict of not guilty of the crime of violence and a verdict of guilty of use of a handgun in the commission of such a crime, the verdicts are inconsistent.’
“In light of these principles, the Court in Mack took the position that ‘verdicts [of] not guilty of the crime of violence and guilty of use of a handgun in the commission of such a crime ... would be contrary to law,’ id. at 595, 479 A.2d 1344. Consequently, we held that ‘a trial court in a criminal case must, if requested by the accused, instruct a jury that an accused cannot be found guilty of use of a handgun in the [408]*408commission of a crime of violence under ... Art. 27, § 36B(d) if found not guilty of a crime of violence as defined in ... Art. 27, § 441(e).’ Id. at 587, 479 A.2d 1344. The Court pointed out that the refusal to set aside the inconsistent jury verdicts in Ford was ‘premised upon the unique role of the jury, [and] had no impact whatsoever upon the substantive law explicated by the Court.’ Id. at 594-595, 479 A.2d 1344.
“Thus, convictions based on inconsistent jury verdicts are tolerated because of the singular role of the jury in the criminal justice system.... The general view is that inconsistencies may be the product of lenity, mistake, or a compromise to reach unanimity, and that continual correction of such matters would undermine the historic role of the jury as the arbiter of questions put to it. United States v. Powell, 469 U.S. 57, 63-68, 105 S.Ct. 471, 476-478, 83 L.Ed.2d 461 (1984) (refusing to vacate conviction for using the telephone to facilitate drug crimes, of which defendant was acquitted by jury); Ford, supra; Johnson, Etc. v. State, 238 Md. 528, 541-545, 209 A.2d 765 (1965). See also Williams v. State, 204 Md. 55, 67-72, 102 A.2d 714 (1954) (discussing reasons for not questioning jury verdicts).
“In the present case, however, the inconsistent verdicts were rendered by a judge, not by a jury. The Ford holding does not justify inconsistent verdicts from the trial judge.”
... The Court in Johnson then distinguished between inconsistent jury verdicts and inconsistent nonjury verdicts, and discussed with approval the opinion of the United States Court of Appeals for the Second Circuit in United States v. Maybury, 274 F.2d 899 (2d Cir.1960). The Johnson Court quoted from Maybury as follows (238 Md. at 543, 209 A.2d 765):
“‘None of these considerations [justifying inconsistent jury verdicts] is fairly applicable to the tidal of a criminal case before a judge. There is no ‘arbitral’ element in such a trial. While the historic position of the jury affords ample ground for tolerating the jury’s assumption of the power to insure lenity, the judge is hardly the [409]*409‘voice of the country,’ even when he sits in the jury’s place. * * * There is no need to permit inconsistency in the disposition of various counts so that the judge may reach unanimity with himself; on the contrary, he should be forbidden this easy method for resolving doubts. * * * We do not believe we would enhance respect for law or for the courts by recognizing for a judge the same right to indulge in ‘vagaries’ in the disposition of criminal charges that, for historic reasons, has been granted the jury. 274 F.2d at 903.’”
“The rule applied in the Johnson and Maybury cases, which distinguishes between inconsistent verdicts in a jury trial and such verdicts in a nonjury trial, has been adopted in other jurisdictions. See, e.g., U.S. v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d 223, 226 (9th Cir.1981); Haynesworth v. United States, 473 A.2d 366, 368 (D.C. 1984); People v. Vaughn, 409 Mich. 463, 295 N.W.2d 354 (1980); People v. Williams, 99 Mich.App. 463, 297 N.W.2d 702 (1980).
“Moreover, in light of our recent opinion in Mack v. State, supra, it would be the height of appellate inconsistency for us to depart from the principles of Johnson and Maybury and hold that inconsistent verdicts in nonjury trials will generally be permitted and will be sustained in the present case. It would make utterly no sense to require a trial judge to instruct the jury ‘that an accused cannot be found guilty of use of a handgun in the commission of a crime of violence ... if found not guilty of a crime of violence,’ Mack, 300 Md. at 587, 596, 479 A.2d 1344, but to hold that the trial judge himself is permitted to ignore this rule.
“The case at bar is not one in which there is only an apparent inconsistency which in substance disappears upon review of the trial court’s explanation. Unlike the situation in Johnson, the trial court’s findings in this case are not consistent with the challenged guilty verdict. ... In light of the Mack, Ford and Johnson opinions, the defendant Shell’s [410]*410conviction of the § 36B(d) handgun offense must be reversed.” [Citation omitted.] [Footnotes omitted.]
Shell is the leading criminal case in Maryland, and has become one of the leading cases in the country, in respect to consistent and inconsistent verdicts. We have cited its holdings on those issues in our cases of Wright v. State, 307 Md. 552, 576, 515 A.2d 1157, 1169 (1986) and State v. Anderson, 320 Md. 17, 29, 575 A.2d 1227, 1233. (1990) (“It is, however, settled in this State, as a nonconstitutional common law principle, that inconsistent verdicts of guilty and not guilty, by a trial judge at a nonjury trial, are not ordinarily permitted.”). In Wright, 307 Md. at 576, 515 A.2d at 1169, we stated:
“The short answer to the Court of Special Appeals’ reliance is that we are not in this case dealing with inconsistent action by a jury. Rather, the inconsistency was on the part of the trial court, in granting a motion for judgment of acquittal as to the underlying felony but submitting the felony murder theory to the jury. While inconsistent verdicts by a jury are normally tolerated, inconsistent verdicts by the court are not ordinarily permitted as a matter of Maryland common law.” [Citations omitted.]
The Court of Special Appeals has frequently cited Shell. See Stuckey v. State, 141 Md.App. 143, 159, 784 A.2d 652, 661 (2001) (“Pellucidly inconsistent verdicts by a trial judge, under Maryland law, cannot stand”); Bates v. State, 127 Md.App. 678, 736 A.2d 407 (1999); Curtis Williams v. State, 117 Md.App. 55, 69-71, 699 A.2d 473, 480-81 (1997)19; and Thomas Williams v. State, 100 Md.App. 468, 473, 641 A.2d 990, 992 (1994) (“In a court trial, moreover, inconsistencies of neither variety will be countenanced.”).
Other jurisdictions have also followed Shell, or have independently adopted a similar holding. The Court of Appeals of Kansas in State v. Meyer, 17 Kan.App.2d 59, 832 P.2d 357 (1992), quoted extensively from Shell and then noted that [411]*411Michigan had also adopted that rationale. The Kansas court stated in Meyer:
“The Maryland Court of Appeals has concluded that inconsistent judgments in a criminal bench trial constitute reversible error. See Shell ...
“The Michigan courts have rejected inconsistent judgments from a criminal bench trial. See People v. Williams, 99 Mich.App. 463, 465, 297 N.W.2d 702 (1980)....
“We conclude the better approach, under the facts presented here, where the same document was involved at the same time with the same parties, is to reject such an inconsistent verdict in a criminal bench trial.
“The rationale for permitting inconsistent jury verdicts is simply not applicable to a bench trial under these circumstances .... A trial court is duty bound to apply the law in a nonarbitrary or [non-]capricious manner. A rule which would permit judgments which cannot be defended upon a logical basis would not enhance respect for the law, the courts, or the process. For an appellate court to uphold such a judgment, which on its face is illogical or arbitrary, would likely undermine respect for the courts.” [Alteration added.]
Id. at 68-70, 832 P.2d at 363-65.
The Court of Appeals of Virginia, while recognizing that inconsistent verdicts in exclusively jury trials are acceptable,20 expressly adopted our Shell holding in respect to criminal bench trials. In Akers v. Commonwealth, 31 Va.App. 521, 529-30, 525 S.E.2d 13, 17-18 (2000), that court opined:
“Juries may reach inconsistent verdicts through mistake, compromise, or lenity, but in such instances it is ‘unclear whose ox has been gored,’ the government’s or the defendant’s ....
[412]*412“The issue of inconsistent verdicts implicates no constitutional guarantee____
“Although we have not previously addressed the issue of inconsistent bench trial verdicts, we have commented on the issue ... on at least two occasions. In Wolfe, 6 Va.App. at 650 n. 3, 371 S.E.2d at 319 n. 3, we noted that nothing in our opinion was ‘intended to address inconsistent verdicts rendered by a trial judge in a single criminal trial.’ Citing Shell v. State, we indicated our belief that ‘the principles stated [in Wolfe] are [not] applicable to such cases. More recently, in Elmore v. Commonwealth, 22 Va.App. 424, 427, n. 1, 470 S.E.2d 588, 589 n. 1 (1996), we assumed without deciding ‘that inconsistent verdicts in a bench trial are grounds for reversal in Virginia.’ We again cited the decision of Maryland’s highest court in Shell as representative of the decisions of other jurisdictions that ‘the considerations that may justify inconsistent jury verdicts do not apply in a bench trial.’
‘We now expressly adopt, as applicable to elemental inconsistency in bench trial verdicts, the basic rationale applied by Maryland’s highest court in Shell.” [Some citations omitted.] [Footnote omitted.]
The Virginia Court of Appeals reaffirmed its position adopting our Shell holding in its later case of Cleveland v. Commonwealth, 38 Va.App. 199, 562 S.E.2d 696 (2002).
As we have indicated, we have found no cases anywhere in which a single criminal case is bifurcated in a fashion where a jury first determines whether a defendant is guilty of some of the counts, and then a judge, as a fact-finder, based upon the same evidence simultaneously presented in the same case, subsequently determines a defendant’s guilt as to other counts.21 There are, however, at least two Maryland criminal [413]*413cases where this Court, and the Court of Special Appeals, have addressed the effect of courts’ actions in criminal cases that resulted in inconsistencies with jury verdicts. Our case of Wright, supra, involved the granting by a trial court of a motion for judgment of acquittal on the underlying felony and a jury’s subsequent guilty verdict on the felony murder charge. In Wright, as is obvious, the result was an inconsistency in verdicts. In the Court of Special Appeals’ case of Curtis Williams, supra, that court, on appeal, vacated a conviction of one offense for which a defendant had been found guilty by a jury. The result was an inconsistency of verdicts. Both Wright and Curtis Williams, involved combined decisions at different stages of a single proceeding-a jury verdict and a trial judge’s granting of a motion for acquittal in Wright, and a jury verdict and subsequent appellate judges’ decision in Curtis Williams.
We said in Wright, 307 Md. at 576-78, 515 A.2d at 1169-70:
“The Court of Special Appeals also relied upon the rule that jury verdict consistency is ‘not mandated by our law’ and furnishes no ground for reversal. While agreeing with Wright’s argument that the judgment of acquittal on the underlying attempted robbery and the conviction of felony murder ‘were inconsistent,’ the Court of Special Appeals responded that ‘it is immaterial.’ The short answer to the Court of Special Appeals’ reliance is that we are not in this case dealing with inconsistent action by a jury. Rather, the inconsistency was on the part of the trial court, in granting a motion for judgment of acquittal as to the underlying felony but submitting the felony murder theory to the jury. While inconsistent verdicts by a jury are normally tolerated, inconsistent verdicts by the court are not ordinarily permitted as a matter of Maryland common law.
“Moreover, we recognize that, as a general principle, inconsistent verdicts on different counts at a nonjury trial are not precluded by the federal constitution, at least when [414]*414the guilty verdict ‘is supported by sufficient evidence and is the product of a fair trial.’ Notwithstanding the ordinary federal constitutional inconsistent verdict rule, we doubt that a conviction for felony murder, after an acquittal of the underlying felony on the ground that the State’s proof was insufficient, and after the trial judge expressly stated that ‘there is not' sufficient evidence to require the Defendants to put on a defense with respect to the’ underlying felony, could be squared with federal double jeopardy or due process principles....
“We conclude, therefore, that both under the Double Jeopardy Clause of the Fifth Amendment and, independently, under Maryland common law double jeopardy principles, the defendant Wright’s conviction for felony murder must be reversed. In addition, because his conviction for using a handgun in the commission of a felony or crime of violence was premised upon his having committed felony murder, that conviction must also be reversed.... ” [Citations omitted.] [Footnote omitted.]
Wright, supra, involved the prior action of a judge causing inconsistent verdicts in a jury trial. The unusual Court of Special Appeals’ case of Curtis Williams, supra, involved subsequent actions by the Court of Special Appeals that resulted in the creation of an inconsistency in respect to a prior jury verdict.
In Curtis Williams, the Court of Special Appeals reconsidered a prior opinion it had filed. Williams argued that the court’s vacating of one count in its prior opinion, had resulted in inconsistent verdicts in his case and that the inconsistency was not the result of a jury’s actions, but one created by the Court of Special Appeals. The appellant in respect to the reconsideration stated: “[T]hat his conviction for using a handgun in the commission of a felony must be vacated because his conviction for the underlying felony was vacated.” Curtis Williams, 117 Md.App. at 69, 699 A.2d at 480. The Court of Special Appeals responded as follows:
“We agree. In resolving this issue, we shall address an issue we have not heretofore fully explained.
[415]*415“We initially note that this case was tried by a jury, and the jury’s verdicts were completely consistent. It convicted appellant of both the underlying felony and the handgun offense....
“Had the jury in the case at bar acquitted appellant of the underlying felony but convicted him of the handgun offense, its verdicts would have been inconsistent. We, however, would have been required to affirm the handgun conviction .... It is important to note that Ford involved jury verdicts. There are later cases in which courts have held that other types of inconsistent verdicts are impermissible.
“In Garland v. State, 29 Md.App. 27, 28, 349 A.2d 374 (1975), rev’d, 278 Md. 212, 362 A.2d 638 (1976) ... the defendant was convicted by a jury of second degree murder and unlawful use of a handgun. We ultimately reversed the conviction for second degree murder. As to the handgun conviction, we stated:
‘It follows that with the reversal of the conviction for the underlying felony, the conviction for the handgun violation, predicated of necessity upon it, must also be reversed.’
Id. at 32, 349 A.2d 374. That statement is technically correct. Garland, however, did not involve a jury inconsistency. It was, as is also clear in the case sub judice, an inconsistency created by an appellate court’s vacating of the underlying felony.” Id. at 69-70, 699 A.2d at 480-81(foot-note omitted).
After a discussion of this Court’s Shell holding, the Court of Special Appeals ultimately held in Curtis Williams:
“As we view this area of the law, inconsistent verdicts from juries are tolerated because of the unique role of juries in our judicial system. Inconsistent verdicts, however, are not generally tolerated in a non-jury context.
“The trial below resulted in jury verdicts that were completely consistent. With our action in the case sub judice, vacating the underlying felony, we, not the jury, have created the inconsistency. With no jury aura present, [416]*416there is no reason for us to tolerate any inconsistency in the verdicts. Accordingly, we shall also vacate appellant’s conviction on the handgun charge.... ”
Id. at 70-71, 699 A.2d at 481.
As in Curtis Williams, the jury’s verdicts in the instant case were consistent. The jury acquitted Galloway of all counts presented to it. It was only subsequently, after the jury was excused, when the trial court found him guilty of two counts in the same case, that the verdicts in the case became inconsistent. The inconsistency, therefore, was created by the trial court. This is not one of those situations where significantly different evidence is considered by the trial court and thus, the inconsistency can be explained, and the general rule might not apply. In this case both verdicts depended upon identical evidence as to the material evidentiary issue. Accordingly, the trial court created improper inconsistent verdicts and its verdicts as to counts 8 and 9 shall be reversed.
Conclusion
The trial court should have honored the jury’s verdict and not rendered inconsistent verdicts. Upon receiving the jury’s verdicts, the trial judge should have dismissed counts 8 and 9.
Article 21 of the Maryland Declaration of Rights, in relevant part, explicitly provides:
“That in all criminal prosecutions, everyman hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.”
In a criminal case a judge’s role as it impacts on a jury’s interpretation of the facts is normally limited to determining whether the facts support a jury’s conclusions as to a conviction, not, as, what in essence occurred in the case at bar, whether the facts support a jury’s conclusion as to an acquittal. If this Court were to approve the inconsistent verdicts rendered by the trial judge, it would be authorizing a practice that would permit the State to achieve a judgement of conviction that overrides a jury’s finding of acquittal.
[417]*417Moreover to accept what occurred here would be to create different, harsher, standards in criminal cases than in civil cases. We are unwilling to afford less protection to the jury trial rights of a criminal defendant, whose very liberty, or even his or her life, is at stake, than to a civil litigant, where, generally, it is money that is at stake.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED; COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.
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809 A.2d 653, 371 Md. 379, 2002 Md. LEXIS 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galloway-v-state-md-2002.